Date: 20000224
Docket: IMM-1844-99
BETWEEN:
HISANO ISHII
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Vancouver, February 23rd, 2000)
LEMIEUX, J.
[1] The applicant, in this judicial review application, challenges a decision dated March 23, 1999 made by Raymond Gabin (the visa officer) refusing her application for permanent residence in Canada in the independant category of retail and wholesale buyer NOC 6233.0.
[2] The material paragraph in the visa officer"s decision letter reads:
| I have carefully assessed and investigated your training and experience in the occupation listed above based on the information you provided in your application, and have concluded that you are not qualified to work in this occupation in Canada, as you do not have the minimum qualifications specified in the National Occupational Classification. A university degree or college diploma in business, marketing or a related program is required. You have a certificate from the Kanda Institute of foreign Languages. I have therefore determined that you do not qualify for selection as a retail and wholesale buyer. |
[3] The applicant"s point was a simple and concise one: the visa officer misinterpreted the requirements of the National Occupational Classification (NOC 6233.0). It does not say a university degree or college diploma in business, marketing or a related program "is required". It says such a diploma "is usually required".
[4] The terms "is required" and "is usually required" are explained in the NOC under the heading "Employment requirements" in this way:
| Some occupations have very definite employment requirements while for others, there is no concensus or there may exist a range of acceptable requirements. To reflect this variation in the labour market, this section describes employment requirements using the following terminology: |
| - "... is required" (to indicate a definite requirement) |
| - "... is usually required" (to indicate something that is usually, but not always, required by employers) |
| - "... may be required" (to indicate something that may be required by some employers, but on a less frequent basis). |
[5] Counsel for the respondent argued the basis for the visa officer"s decision was not that he did not have a university degree but on a combination of factors such as training and experience as well as the fact the applicant"s two year course at Kanda Institute for Foreign Languages did not contain any business courses. Counsel for the respondent conceded the visa officer had misstated the educational requirement. Counsel for the respondent also argued there was no evidence the applicant met with a stated mandatory requirement, namely, that of having experience as a sales supervisor or sales representative drawing my attention to pages 21 and 23 of the certified tribunal record where the applicant"s letters of reference appear and where there is no mention of her experience on the sales side.
[6] I note the visa officer"s refusal was decided without the benefit of an interview with the applicant even though the applicant was paper screened with 62 units including 6 units for experience (item 3) and one unit for the occupational factor ( item 4) (See section 11.1 of the Immigration Regulations ).
[7] This is not the first time the Court has been faced with issue of the application by a visa officer of the NOC terms "is required" and "is usually required". I was directed to two recent decisions of the Court: (1) Hara v. Canada (M.C.I.) (IMM-6307-98, August 26th, 1999, Reed, J.) and (2) Karathanos v. Canada (M.C.I.)(IMM-5011-98, October 5th, 1999, Sharlow, J., as she then was).
[8] In Hara, Reed, J. referred to a memorandum by the Department of Citizenship and Immigration to all visa officers instructing them to interpret "is usually required" as meaning that "the applicant must meet this requirement unless there are significant and substantial factors that would, in the judgment of the visa officer, make it likely that the applicant will be able to overcome this typical requirement".
[9] Justice Reed, in Hara, said what was contained in the memorandum "may be too rigid an interpretation" but went on to hold "nevertheless, there must be some persuasive reason for thinking that the applicant will be able to hold employment in the intended occupation despite the fact that the "usual" educational qualifications are not present" (see, paragraph 6).
[10] In Karathanos, supra, Justice Sharlow endorsed Hara, supra, and went on to say at paragraph 25:
| In this case, the visa officer was faced with an applicant who did not have the educational requirements that are "usually required" for her chosen occupation. He should have considered her education, training and experience in its entirely with a view to determining whether it was the approximate equivalent of a master"s degree in archival studies, library science or history. After reviewing the record, I am far from satisfied that the visa officer made a reasonable assessment of Ms. Karathanos" work experience with that question in mind. |
[11] Neither in Hara nor in Karathanos was the error of interpretation of the NOC"s employment requirements as clear as in this case. Here, the visa officer definitely said a university diploma is required i.e. a mandatory requirement. He was mistaken. Furthermore, this misinterpretation was the core reason for the visa officer"s finding the applicant was not qualified as a retail and wholesale buyer. He said a university degree in business ... is required and he found she only had a certificate in foreign languages. The visa officer"s decision clearly gives no scope to the phrase "is usually required" and to the factors which should be considered to determine if the applicant"s profile compensates for not meeting the "usual requirement". In these circumstances, I characterize the misinterpretation as leading the visa officer not to take into account relevant factors in the exercise of his discretion.
[12] Even if I were to accept the respondent"s interpretation that the visa officer"s misinterpretation did not preclude him from embarking upon the relevant inquiry of "training and experience" factors, I am not satisfied that the inquiry the visa officer conducted was of the kind required by the Immigration Act . It was, at best, a perfunctory assessment of these factors. A review of his CAIPS notes clearly demonstrates this: there is no analysis of the applicant"s experience and there is no analysis of what training she may have undergone albeit however, there is no mention of training in her application which is her obligation to be thorough and complete about (Re Lam v. Canada (M.C.I.) (1998), 152 F.T.R. 316).
[13] For all of these reasons, this judicial review application is allowed and the matter is remitted to a different visa officer for redetermination. No certified question was proposed.
(Sgd.) "F. Lemieux"
Judge
February 24, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1844-99
STYLE OF CAUSE: HISANO ISHII
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: VANCOUVER, B.C.
DATE OF HEARING: February 23, 2000
| REASONS FOR ORDER OF LEMIEUX, J. |
DATED: February 24, 2000
APPEARANCES:
| Mr. Dennis Tanack for the Applicant |
| Ms. Emilia Pech for the Respondent |
SOLICITORS OF RECORD:
Dennis Tannack
Barrister & Solicitor
| Vancouver, BC for the Applicant |
Morris Rosenberg
Deputy Attorney General
| of Canada for the Respondent |
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